Robert Craig and Gavin Phillipson: Could the ‘Meaningful Vote’ End up in Court?

Is it Parliament v the people – not a pretty site, but perhaps an inevitable bye-product of Brexit?

UK Constitutional Law Association

One of the most controversial issues during the passage of the European Union (Withdrawal) Act 2018 (‘EUWA’) was the so-called ‘meaningful vote’, which parliamentarians hoped would give the Commons a real say over any ‘deal’ reached by the Government with the EU (see previously on this blog posts by Alison Young and Jack Simson Caird). The provisions governing the vote are now set out exhaustively in s 13 EUWA (below).

This issue is now coming sharply into focus amongst parliamentarians and commentators as negotiations with the EU enter their final stages and attention starts to turn to the question of when and how the meaningful vote will take place. A post by Jack Simson Caird just this week considered some of the procedural issues surrounding the process of approval. This blog addresses the issue, recently alluded to by the Government, of possible legal challenges that might arise should…

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Funding family proceedings for the weaker spouse

20160419_174504Funding and when may it be available

 

A coalition of questions led me to think about legal services orders: the orders which enable judges, in the view of some husbands, to force them to pay their wives to sue them. To the more enlightened, it enables family courts to require the financially more robust party (a husband (H), say) to provide from assets controlled by him enough to ensure Family Procedure Rules 2010 r 1.1(2)(c) is complied with: that both ‘parties are on an equal footing’. In other words, yes, that he must release cash to ensure his (former) wife (W) has enough to pay her own lawyers. At a time when so many spouses are acting in person in family proceedings, I wonder how many parties – mostly it will be wives or mothers – are applying for orders.

 

These thoughts were given prominence by press reports that Princess Tessy of Luxembourg had conducted her own financial relief proceedings; though had she not wanted to I am sure funds would easily have been made available to fund her own lawyers. By contrast, a new client of mine had been advised by previous lawyers – three at least, as far as I could see from her papers; and none seem to have advised her to ask the court to order cash from her former husband, to for representation and for train travel to the distant court where he was conducting their matrimonial financial relief proceedings.

 

‘Family proceedings’ for present purposes, means proceedings which happen in the family courts (ie Family Division of the High Court or the Family Court (formerly county courts)). Mostly the proceedings dealt with in the family courts are:

 

  • Children proceedings (often called ‘private law’)
  • Care (or ‘public law’) proceedings
  • Domestic abuse and occupation order proceedings
  • Financial proceedings after divorce (ie under Matrimonial Causes Act 1973 (MCA 1973))
  • Financial relief for and in relation to children (Children Act 1989 Sch 1)
  • Divorce

 

Parents and children in proceedings under 2 will have legal aid always. Those who are financially eligible are entitled to legal aid under 3. Defended divorce is very rare. Unless any human rights issues arise (regarded as ‘exceptional’ under legal aid legislation), legal aid in children proceedings will only be available – again very rare – for a child who is joined. Parties who have had legal aid for domestic abuse may be entitled also to legal aid under 1,  4 and 5; but not otherwise.

 

The question of payment by one spouse to another arises from 4 (and for parents under 5 – probably: the law is not entirely clear). That is what this note deals with.

 

Funding for financial relief proceedings: legal services orders

 

So what funding may be available in financial proceedings under divorce legislation? Can one materially weaker spouse (say, the wife (W)) claim funding for such proceedings from the other spouse (H)?

 

MCA 1973 s 22ZA(2) says a party to ‘proceedings…for financial relief’ can seek an order for payment for ‘legal services’ (as defined by s 22ZA(10)) (s 22ZA(1) is about funding divorce costs). The presumption is it will be the financially weaker spouse only who will apply for the order, a ‘legal services order’. Section 22ZA enables a spouse to seek funding to employ lawyers from her spouse. I am sure that if Princess Tessy of Luxembourg had wanted to apply for a legal services order it would have been granted. By all accounts the Prince had the necessary cash.

 

In a case where the means of the parties are more routine, if a husband has his own lawyer, the question must be: why should not H’s expenditure for a wife’s lawyers where she cannot pay from her own means be balanced – at least in part – by him for lawyers of her choice? Section 22ZA provides a statutory basis for her to make such an application to the court.

 

If the court is to make an order, it must be satisfied that there is no other source of funding available to the applicant spouse (s 22ZA(3)) eg a bank loan or other borrowing (s 22ZA(4)(a)) or a loan charged on property (s 22ZA(4)(b)). And MCA 1973 s 22ZB sets out the factors about the parties’ circumstances the court must take into account before it makes an order.

 

At a time when so many wives of modest means are presenting their own finance cases, I wonder how many are using legal services orders to help them to finance their own lawyers?

Confidentiality and Legal Aid Agency

20160419_170156How legal is disclosure of information by Legal Aid Agency?

 

A report from Buzzfeed.News tells the reader (5 October 2018) that Legal Aid Agency (LAA) have passed on confidential information to the Ministry of Justice such that legal aid was denied to three ultimately successful applicants for judicial review against another government department. It seems that LAA have to put out their press notices through Ministry of Justice. As will be clear from this article release of information by the Agency is probably in breach of their own duties under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA). If disclosure is outside the terms of LASPOA it may even render those involved liable to prosecution (whether or not condoned by Mr Grayling, then Lord Chancellor).

 

So what are LAA allowed to pass on to others outside their office, and how is this affected by existing case law? LASPOA s 34[1] says that ‘information’ provided by ‘an individual seeking or receiving’ legal aid (s 34(1)) ‘must not be disclosed’ (s 34(2)) at all by LAA, save as set out in s 35. Section 35 boils down to that disclosure is allowed by LAA to enable or assist the Secretary of State for Justice ‘to carry out functions’ under LASPOA or otherwise; or to enable LAA to carry out its functions or courts or others ‘on whom functions are imposed or conferred by’ the Act; or under a court order, in relation to a prosecution, or otherwise for court proceedings.

 

What do ‘disclosure of information’ restrictions on LAA mean?

 

So what does s 34 ‘must not be disclosed’ mean? For most people this would not be too difficult. If confidential information is received it is meant to be private as between the confidante (LAA, in this case) and the confidor (applicant for legal aid). Generally the information can only be passed on by the confidante with permission from the confidor. The position if the confidentiality is also legal professional privilege (LPP) is even more strict: a lawyer may not pass on information which is covered by privilege. Much of what is in a legal aid application will be covered by LPP.

 

Confidentiality and LPP are common law concepts. A working definition of the former was provided in modest terms by Lord Goff in Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, [1988] UKHL 6, [1987] WLR 776, (Spycatcher case) at 281 (it remains the best far provided (see eg Confidentiality by Phipps and Toulson, (3rd Edition, 2012)):

 

I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word “notice” advisedly, in order to avoid the (here unnecessary) question of the extent to which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.

 

LPP has been frequently defined. The best modern definition is in R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513. Either the Derby justices case or Lord Goff’s definition of confidentiality should lead the LAA to be clear that most of what they receive is confidential, and – in addition – that much of it is covered by LPP.

 

Snaresbrook Crown Court case

 

The issue of confidentiality and the legal aid authorities arose in R v Snaresbrook Crown Court exp Director of Public Prosecutions [1988] 1 QB 532. In that case A had pleaded guilty to a charge of assault, but complained through his solicitors that at the time of his arrest he had been assaulted by a named police officer and his nose broken. A applied for legal aid to bring an action for assault. Police inquiries revealed that his nose had been broken two days earlier. He was charged with attempting to pervert the course of justice.

 

The prosecution requested production by The Law Society (then responsible for administration of legal aid) of A’s application form. The office declined. The DPP sought an order under Police and Criminal Evidence Act (PACE 1984) s 9 on the ground that the form was ‘special procedure material’. The Crown Court held that the form was privileged under PACE 1984 s 10(1) (ie ‘legal privilege’ as defined by PACE 1984 s 10(2): a definition it is said which covers legal professional privilege (LPP): R v Central Criminal Court exp Francis & Francis [1989] AC 346). The judge refused to order production.

 

The DPP application for judicial review in Snaresbrook was refused. A was the client of a professional legal adviser and the legal aid application a communication between him and The Law Society for legal proceedings. It was therefore within the definition of items subject to ‘legal privilege’ under s 10(1).

 

Confidentiality, Snaresbrook and what can the LAA disclose?

 

So what may LAA release to anyone else and especially to Secretary of State for Justice (or Lord Chancellor)? In Snaresbrook, Glidewell LJ considered in particular the extent to which The Law Society could disclose information. Legal Aid Act 1974 s 22 was the then version of s 34. So far as material to that case s 22 said:

 

(1) Subject to subsection (2) below [ie where a person consents to disclosure], no information furnished for the purposes of this Part of this Act to The Law Society, or to any committee or person on their behalf, in connection with the case of a person seeking or receiving advice or assistance or legal aid shall be disclosed otherwise than …

(b) for the purpose of any criminal proceedings for an offence under it or of any report of such proceedings….

(3) A person who, in contravention of this section, discloses any information obtained by him when employed by or acting on behalf of The Law Society shall be liable on summary conviction to a fine not exceeding £100.

 

Legal Aid Act 1974 was harsher on anyone who disclosed. LASPOA 2012 ss 34 and 35 are broader on what may be disclosed by LAA staff (or others) to third parties; but the meaning of s 22, and thus of the reach of LASPOA 2012 s 35 in terms of confidentiality, is explained by Snaresbrook. The case still applies to confidentiality, LPP and the legal aid application. Glidewell LJ explains that in that case what is in effect litigation privilege applies to A’s documents (at 536G):

 

The application for legal aid, on the face of it, is a communication between him and another person, namely, the area officer of The Law Society. Clearly it was made in contemplation of and for the purpose of legal proceedings. On the face of it the material does come within the definition of items subject to legal privilege in [PACE 1984] s 10(1).

 

LAA leaks and LASPOA disclosure

 

So far as the LAA leaks are concerned the material they include can be taken to include matters covered both by confidentiality (see Lord Goff’s definition in Spycatcher (above)) and by the more protective confidentiality of LPP. A person does not waive privilege because he or she passes documents otherwise covered by privilege to a third party (B & ors v Auckland District Law Society (New Zealand) [2003] UKPC 38, [2003] 2 AC 736), such as LAA.

 

The press report I have seen is not enough to tell me that s 34(2) (subject to s 35) has been breached. There seems to have been slackness in LAA and a lack of stringency in its relations with Lord Chancellor and other government departments. Proceedings under s 34 can only be taken with the consent of the Director of Public Prosecutions (LASPOA 2012 s 34(5)). Should the DPP be looking into this a little more?

[1] 34 Restriction on disclosure of other information

(1)This section applies to information that is provided—

(a)to the Lord Chancellor, the Director, a court, a tribunal or any other person on whom functions are imposed or conferred by or under this Part, and

(b)in connection with the case of an individual seeking or receiving services provided under arrangements made for the purposes of this Part.

(2)Such information must not be disclosed, subject to the exceptions in section 35.

(3)A person who discloses information in contravention of this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Family proceedings: a ‘watchdog’ role

20170407_154512Legal bloggers to attend court

 

On 1 October 2018 a new scheme was unveiled which enabled ‘legal bloggers’ with the right qualifications and paperwork to go into family courts (see Family Procedure Rules 2010 (FPR 2010) Practice Direction PD37J). These courts would otherwise be closed to them because the hearings concerned are ‘in private’. Thus bloggers (per the new FPR 2010 r 27.11(2)(ff) amended into FPR 2010 r 27.11(2)) are added to the list of those able to attend court.

 

Generally, no one is allowed into a family court except the parties, their representatives, witnesses, ‘officers of the court’ and so on (r 27.11(2)(a)-(e)). In addition, the rule says that for hearings in private the following may also come into court (with (ff) added by the recent PD37J) (‘court attenders’):

 

‘(f) duly accredited representatives of news gathering and reporting organisations;

(ff) duly authorised lawyers attending for journalistic, research or public legal educational purposes; and

(g) any other person whom the court permits to be present.’

 

Why are they there? The general common law rule is that English justice must be dealt with in open court. This was explained by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (in a case about release of hearings documents to a newspaper):

 

[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice….

 

A ‘watchdog’ role

 

Taking his lead from Bentham, when the original version of r 27.11(2) came in, in Re Child X (Residence and Contact: Rights of Media Attendance: FPR Rule 10.28(4)) [2009] EWHC 1728 (Fam), [2009] 2 FLR 1467, Sir Mark Potter P described the role of the ‘watchdog’ press under the new rule:

 

[38] The net result of all this is that, while the press are entitled to report on the nature of the dispute in the proceedings, and to identify the issues in the case and the identity of the participating witnesses (save those whose published identity would reveal the identity of the child in the case), they are not entitled to set out the content of the evidence or the details of matters investigated by the court. Thus the position has been created that, whereas the media are now enabled to exercise a role of ‘watchdog’ on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of its judges, they are unable to report in their newspapers or programmes the identity of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader or viewer.

 

What is needed to give a real watchdog, and Benthamite, role for the media and others – eg legal bloggers – who attend family proceedings trials (per FPR 2010 r 27.11(2)(f)-(g))? I suggest the following:

 

  • The whole point of a ‘watchdog’ role – as envisaged by Bentham – is to keep judges up to the mark. Those with the privilege of attending court under r 27.11(2) must bear that in mind: it is the judges as much as anyone whom they are keeping an eye on; and they should take on that role accordingly. For example, how many cases from circuit judges in care proceedings in the past year (a) get permission to appeal; and (b) result in appeals being allowed and the appellate court being publicly critical of the circuit judge/ I hear few watchdogs commenting on that state of affairs.

 

  • Access to hearing documents before a hearing, so that the person attending court has a good idea what is going on, much as if that person was in open court (Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795; and see Court documents: Part 1 – to make sense of family court proceedings and the following three articles on what may be released from hearings).

 

  • Someone – the court, the applicant? – should ensure that a basic outline of the facts and any law principles in issue in any individual case is available to the court attender: but only where the case is one which is listed to last (say) for more than one day.

 

On this basis the family proceedings watchdogs can start constructively to review and comment on what family courts judges are doing in our name, and as Jeremy Bentham envisaged.

 

The critical question will be: to what extent are lawyers who attend hearings willing to be frank in their views of the ways individual judges deal with family cases? Will they be prepared openly to disagree with what judges do; and will any legal journals be willing to publish content which is openly critical of individual judges? For example:

 

  • What of the judge who case managed a defended divorce case by allowing evidence only from the parties themselves (overlooking the need for corroboration); and restricted the period of marriage over which the petitioner’s evidence (Owens v Owens [2018] UKSC 41)? And what of the unfortunate petitioner whose lawyers permitted this to happen?
  • Or the judge who failed to ensure that a 15 year old, who made sex abuse allegations against a father, had her allegations tested by or on behalf of the father (Re S (Care Proceedings: Case Management) [2016] EWCA Civ 83, [2017] 1 FLR 1476) before he was deprived of contact with his small child, without challenge to the evidence of the 15 year old.
  • Care order made within three weeks of the application at a case management hearing (all parties agreed the appeal should be allowed): Re S-W (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27, [2015] 2 FLR 136

 

Will blogger watchdogs raise concerns at the way domestic abuse hearings (mostly Family Law Act 1996 Pt 4) are routinely heard in secret by family courts. On the same facts any prosecution will be heard in open court; and the common law would expect them to be heard in public?

 

Will legal bloggers ‘keep the judge himself while trying under trial’ as Bentham envisaged of open court trials? It is a heavy duty on behalf of the rest of us, as envisaged by Bentham and Sir Mark Potter P.